Decision No. 13,279

(October 26, 1994)

DeFrancis & Grossman, Esqs., attorneys for petitioner, Lois Grossman, Esq., of counsel

Bernard T. Callan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the Brentwood Union Free School District ("respondent") to suspend his son, Gregg, for the remainder of his high school career. The appeal must be sustained in part.

On December 14, 1993, Gregg, a junior in high school, was involved in a physical altercation with another student. During the altercation, a teacher who attempted to separate the two students was allegedly struck by Gregg. That same day, petitioner was called to the high school and informed that Gregg would be suspended for five days for fighting and hitting a teacher. Petitioner received notification dated December 21, 1993 that a superintendent's hearing would be held on January 4, 1994 regarding the matter. Gregg returned to school on December 22, 1993. Petitioner subsequently requested an adjournment of the hearing due to the winter recess and his inability to obtain school records needed to prepare for the hearing. An adjournment was granted until January 13, 1994 but petitioner was informed that Gregg was to remain out of school until the hearing was held.

The hearing took place on January 13, 1994. The teacher who was struck testified that he observed a student holding Gregg in a head lock while pounding Gregg's head against the window at least three times. The teacher expressed concern that Gregg would be "killed by the constant head injuries." The teacher testified that he placed himself between the two boys as they separated and that Gregg struck him on the left side of the face near his nose. None of the witnesses, with the exception of the teacher who was struck, testified that they saw Gregg hit the teacher. It appears from the testimony presented at the hearing that Gregg inadvertently struck the teacher as he was attempting to separate the two students.

In a letter dated January 18, 1994, petitioner was informed of the hearing officer's recommendation that Gregg be excluded from attendance at respondent's high school and that he be barred from all school activities and school grounds, with the exception of attendance at evening high school. On January 21, 1994, Gregg, who had been continuously attending school since the January 13th hearing, was removed from the high school by school officials. Petitioner notified respondent that he intended to appeal the decision of the superintendent and requested a transcript of the hearing and a stay of the suspension pending his appeal. Respondent notified petitioner that the tape of the hearing would not be transcribed and available until the end of February.

On February 16, 1994, petitioner appealed the superintendent's decision to respondent. Petitioner was notified by letter dated March 21, 1994 that respondent had sustained the superintendent's determination. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of his appeal was granted on May 17, 1994.

Petitioner asserts that respondent violated Gregg's due process rights. Petitioner also alleges that respondent appointed a biased hearing officer and that petitioner's son was suspended by a non-authorized school official. Petitioner further alleges violations of the Freedom of Information Law. Petitioner seeks an order directing respondent to readmit Gregg, seeks compensatory education for instruction lost by virtue of respondent's action and seeks attorney's fees. Respondent contends that it acted appropriately in suspending petitioner's son.

Education Law '3214(3)(c) states:

While petitioner raises several objections regarding the conduct of the hearing, the record before me does not indicate that petitioner's rights under Education Law '3214 were violated. One of the procedural arguments raised by petitioner is the partiality of the hearing officer, who he claims was biased by virtue of his employment by the school district. However, under Education Law '3214(3)(c), the superintendent is authorized to conduct a hearing or designate a hearing officer to conduct the hearing. Since the statute specifically authorizes the superintendent or his designee to conduct a hearing, the fact that the hearing officer was employed by the school district, without evidence of actual bias, is not a basis for finding that the hearing officer was biased.

The record before me indicates that Gregg was afforded a fair hearing under Education Law '3214. Petitioner had the right to question witnesses and present evidence regarding the fight in which Gregg was allegedly involved. The hearing officer did object to the questioning of Assistant Principal Carnese during the hearing since Mr. Carnese was conducting the case for respondent. Petitioner apparently wished to question Mr. Carnese concerning Gregg's initial suspension but the hearing officer correctly denied the request because the scope of the hearing involved the fight in which petitioner's son was allegedly involved and not the subsequent suspension procedures. Respondent contends that other than the hearing officer's ruling concerning the questioning of Mr. Carnese, petitioner was afforded ample opportunity to question witnesses and present evidence on his son's behalf. The record before me supports respondent's contention on this issue.

As to petitioner's allegation that his son's suspension was imposed by an unauthorized individual, respondent contends that while Assistant Principal Carnese met with petitioner and his son, the suspension was in fact authorized by the principal, consistent with Education Law '3214(3)(b). The record indicates that the principal spoke with the assistant principal regarding this matter and authorized Gregg's suspension for five days. The letter dated December 15, 1993, notifying petitioner of Gregg's suspension, was signed by the principal. Therefore, I have no basis to conclude that the initial suspension was imposed by an unauthorized individual. Insofar as petitioner objects to the fact that the assistant principal conducted the informal conference surrounding Gregg's initial five day suspension, I agree that Education Law '3214(3)(d) requires that the building principal, not the assistant principal, conduct the informal conference. I note that respondent's error in this regard is unrelated, however, to Gregg's suspension for the remainder of his high school career. Respondent is reminded to utilize appropriate personnel in its suspension procedures in the future.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Kittell, 31 Ed Dept Rep 419; Appeal of Ezard, 29 id. 135; Matter of Chapman, 28 id. 272). The record indicated that respondent presented competent and substantial evidence that Gregg is guilty of the actions charged. Turning to the appropriateness of the penalty, I note that the hearing officer's recommendation was that Gregg be excluded from school for the remainder of his high school career. This penalty is tantamount to a permanent expulsion. At the time of the incident that gave rise to this appeal, Gregg was in the middle of his junior year. The hearing officer recommended that Gregg be excluded from school grounds and all school activities with the exception of evening high school for the rest of his high school career. There is no evidence in the record that the hearing officer took Gregg's anecdotal record into account when determining the recommendation of permanent suspension. In fact, the record is devoid of any indication that Gregg has a disciplinary record at all. In defense of its penalty, respondent submits evidence that the incidents of fighting on school grounds have risen dramatically and respondent seeks to impose strict penalties for fighting as a deterrent to that type of conduct. While I am sympathetic to respondent's dilemma, on the facts of this case, a single fight, without more, is not a sufficient basis to permanently expel a student from school. This is particularly so where Gregg's striking of the teacher was apparently inadvertent.

Where the penalty is excessive in a student discipline case, I will substitute my judgment for that of the board of education (Appeal of Nathaniel D., 32 Ed Dept Rep 67; Matter of Reynolds, 21 id. 228; Matter of Bruce, 16 id. 143). Having found petitioner's son's suspension from school for the remainder of his high school career disproportionate to the offense, I find that the suspension time served by Gregg -- approximately four months -- is sufficient to impress upon Gregg the seriousness of his conduct. Any further suspension of this student is unwarranted.

The Freedom of Information Law claim raised in this appeal must be dismissed. The appropriate forum for addressing a violation of the Freedom of Information Law is the Supreme Court of the State of New York (Appeal of Mitzner, 32 Ed Dept Rep 101; Appeal of Eisner, 31 id. 517; Appeal of Strober, 30 id. 4).

Petitioner's request for attorney's fees must also be denied. The Commissioner of Education lacks authority to award attorney's fees in an appeal under Education Law '310 (Appeal of Ferguson, 32 Ed Dept Rep 494; Application of a Child with a Handicapping Condition, 31 id. 212). Finally, I have reviewed petitioner's remaining arguments and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that Gregg Stewart's record be modified to reflect the penalty imposed, and

IT IS FURTHER ORDERED that Gregg Stewart be placed in a regular educational program.

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